Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2) .
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. ·If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found . at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen~ Thank you,
Ron Rosenberg
Acting Chief, ~dministrative Appeals Office
DISCUSSlON: The Director, Texas Service Center, denied the employment-based immigrant visa. petition, which is · now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a newspaper publisher. It seeks to employ the beneficiary permanently iii the United States as an e-business software engineer pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director· determined that · the beneficiary did not satisfy the minimum level of education stated on the labor certification. Specifically, the director determined that the beneficiary did not pos,sess a United States advanced degree or foreign equivalent, or a United States baccalaureate degree ·or its equivalent, and · at least five -years of progressive experience.Degree not shown to be a U.S. advanced degree equivalent
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary. In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services ·are sought by an employer in the United States. An advanced degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1
The beneficiary ossesses a foreign three-year Bachelor of Science degree in computer science from the a Higher Diploma in software engineering from and coursework in the master of computer applications program at Thus, the issue iil this case is whether the beneficiary possesses a foreign degree equivalent to a U.S. baccalaureate degree.
The director issued a Notice of Intent to Deny (NOID) dated February 6, 2012 to inform the petitioner that . the beneficiary is ineiigible for the requested classification as a member of the 1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in ·the instant case ,provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). p. 3 professions holding an advanced degree. _ In his response to the NOID, counsel states, "Consequently, we concede that based on your analysis [of the beneficiary's degree equivalency], the subject[beneficiary] may not qualify for EB-2." In response to the NOID, counsel attempted to change the beneficiary's classification from Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)," to classification as a Skilled Worker or Professional Pursuant to Section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C.· § 1153(b)(3). In his denial, the director states that a petitioner may not make material changes to a petition and that the appropriate remedy is to file another petition with the proper fee and required documentation. The director noted, however, that the beneficiary does not meet the requirements for the proffered position as stated on the labor certification, as the beneficiary does not possess a bachelor's degree. On ~nnP.~l r.nnm:P.l ~nhmit~ ~ hnP.f Tn hi~ hriP.f r..onn~el ~rone~ th:d ll letter from should control because it was the policy of the Service at the time of filing the labor certification to accept a combination of degrees to satisfy the bachelor's degree or foreign equivalent requirement. Counsel further argues that that regulation at 8 C.P.R. §§ 204.5(k)(2) and (k)(3)(i)(B) and the statute at INA § 203(b)(a)(2) allow for a combination of lesser degrees to fulfill the bachelor's degree or foreign equivalent requirement for a professional.
Eligibility for the Classification Sought
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL's role is limited to determining whether there are sufficient workers who are able, willing, qualified and available· and . whether the employment of the alien will adversely affect the wages and working conditions of workers in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.P.R.§ 656.1(a). It is significant that none of the above inquiries assigned to DOL, or the remaining regulations implementing these duties under 20 C.P.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigrant classification or even the job offered. This fact has not gone unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (91h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). . On appeal, counsel relies oi:t a letter from
Adjudications. The letter discusses whether a "foreign equivalent degree" must be in the form ofa single degree or whether the beneficiary may satisfy the requirement with multiple degrees. The Office of Adjudications letter is not binding on the AAO. Letters written by the Office of Adjudications do not constitute official USCIS policy and will not be considered as such in the adjudication of ·petitions or applications. Althoogh the letter may be useful as an aid in interpretmg the law, such letters are not binding on any {JSCIS officer as they merely indicate the writer's . analysis of an issue .. See Memorandum from Office p. 4 of Programs, Significance of Letters Drafted by the Office of Adjudications (Dec. 7, 2000) (copy incorporated into the record of proceeding).
Rather, the AA,O is bound by the Act, agency regulations, precedent clecisions of the agency, and published decisions from the circuit court of appeals from.whatever circuit that the action arose~ See N.L.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987) (administrative agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. lnv .. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001) (unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published in ·private publications or widely circulated). Even USCIS internal memoranda do not establish judicially enforceable rights. See Loa:..Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(an agency's internal guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedll!es upon which [they] may rely.") -On appeal, counsel argues that the regulations, the statute, and the Service's intent in 1991 when the final rule for 8 C.F.R. §204.5 was published in the Federal Register, demonstrate that a bachelor's degree or its foreign equivalent can be either a single degree or a combination of degrees. A United States baccalaureate degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 (Reg'L Comm'r . 1977). This decision involved a petition filed under 8 U.S.C. §1153(a)(3) as amended in 1976. At that time, this section provided:
Visas shall next be made available ... to qualified immigrants who are members of the professions ....
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides: Visas shall be made available .. ; to qualified immigrants who are members of the professions holding advanced degrees or their equivalent ....
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244 is identical to the statutory language used subsequent to· that ·decision but for the requirement that the immigrant hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of Conference, published as part · of the House of Representatives Conference Report on the Act, provides that "[in] considering equivalency in category 2 advanced d~grees, it is anticipated that the alien must have a bachelor's degree with at least five years progressive experience in the professions." H.R. Conf. Rep. No. 955, 101 st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at *6786 (Oct. 26, 1990).
At the time of enactment of section 203(b )(2) of the Act in 1990, it had been almost thirteen years since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it stated that an ·alien "must have a bachelor's degree" when considering equivalency for second preference immigrant visas. We mustassume that Congress was aware of the agency's previous treatment of a "bachelor's degree" under the Act when the new classification was enacted and did p. 5 Page :S not intend to alter the agency's interpretation of that term. See Lorillafd v. Pons, 434 U.S . .575, 580-81 (1978) (Congress is presumed to be aware of administrative and j"Qdicial interpretations where it adopts a new law incorporating sections ·of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (an alien must have at least a bachelor's degree).
In .1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the Immigration and Naturalization Service (the Service), responded to criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for the substitution of experience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L. _101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, the Service specifically noted that both the Act and the legislative history indicate that an alien must have at least a bachelor's degree: ~
The Act states that, in order to qualify under the second Classification, alien members of the professions must hold "advanced degrees or ·their equivalent." As the legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's degree with at least five years progressive experience in the professions." · Because neither the Act nor its legislative history indicates that bachelor's or advanced degrees must be United States degrees, the Service will recognize foreign equivalent degrees.
But both the Act and its legislative history make clear that, in order to qualify as a professional ·under the third classification or to have experience equating to an advanced degree under the second, an alien must have at least a bachelor's degree.
I.
The Trustforte evaluation concludes that the beneficiary's Bachelor of Science in computer science from the combined with his Higher Diploma in software engineering from are equivalent to a U.S. bachelor's degree in computer science. It does not discuss the coursework completed at On the other hand, the lEE evaluation concludes that the beneficiarv's Bachelor of Science in computer engineering combined with the coursework completed at are equivalent to a U.S. bachelor's degree in computer science. Neither· ·.evaluation concludes that the beneficiary's Bachelor of Science m computer science is equivalent to a single U.S. bachelor's degree.
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the alien has a United States · baccalaureate degree or a foreign equivalent degree" (plus evidence of five years of progressive experience in the specialty). For classification as a member of the professions, the regulation at 8 C.F.R. § 204.5(l)(3)(ii)(C) requires the submission of "an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study." We cannot conclude that the evidence required to demonstrate that an alien is an advanced . degree professional is any less than the evidence required to show that the alien is a professional. To do so. would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the~ more restrictive visa cla~sification. Moreover, the commentary accompanying the proposed advanced degree professional · regulation specifically states that a "baccalaureate means a bachelor's degree received from a college or university, or an· equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703; 30306 (July 5, 1991). Compare 8 C.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability") . . The record contains no evidence that APTECH ·computer Education is a college or university. Because the beneficiary haS neither (1) a U.S: master's degree or foreign equivalent degree in computer science, nor (2) a U.S. baccalaureate degree or foreign equivalent degree in computer science and five years of progressive experience in the specialty, he does not qualify for preference visa classification as an advanced degree professional under section 203(b )(2) of the Act. The beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," and, thus, does not qualify for preference visa classification under section 203(b )(2) of the Act. For this reason, the petition may not be approved.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.